Judgment

Mr. Sanjay Vashisth, J.

Present Regular Second Appeal (RSA) has been filed by defendants No.1 to 3 (appellants herein), against the concurrent finding of decreetal of suit in favour of the deceased plaintiff – Manjit Singh (respondent herein).

2. Brief facts, necessary for adjudication of the case are that plaintiff filed a suit for seeking decree of declaration to the effect that plaintiff and defendants No.4 & 5 are owners of land measuring 41 Kanals 5 Marlas ¼ share of 164 Kanals - 16 Marlas in equal shares and defendant No.1 to 3 are owners of land measuring 13 Kanals – 15 Marlas 1/16th share of land measuring 164 Kanals – 16 Kanals comprised in Khewat No.25, Khatoni No.53, Rect. No. 89, Killa No. 2(8-0), 3(8-0), 8(4-2), 9(8-0), 10(8-0), 11(8-0), 11(8-0), 20(3-13), 12(4-0), 1(8-0), Rect. No.88 Killa No. 13 (4-2), 14(8-0), 17(8-0), 19(3-18), 21/2 (3-2), 22(8-0), 23(7-8), 5(8-16), 6(8-0), 7(5-19), 15(8-0), 16(7-19), 18(7-8), Rect. No.90 Killa No.1(7-18), 2(8-0), Rect. No.91, Killa No.5(2-9), situated within the revenue limits of village Beedowali, Tehsil Gidderbaha, District Sri Muktsar Sahib as per Jamabandi for the year 1995-96 being the legal heirs of deceased Angrej Kaur.

Another decree of declaration is prayed to the effect that Will dated 06.01.2003 alleged to be executed by deceased – Angrej Kaur, in favour of deceased – Gurmeet Singh, is forged and fabricated document, and mutation No.1788 regarding estate of deceased – Angrej Kaur is illegal, null & void, and not binding upon the rights of the plaintiff.

3. Defendants No.2 & 3 were minors at the time of filing of the suit, therefore, their interest was looked after by defendant No.1 (their real mother).

Facts pleaded in the plaint are that Angrej Kaur w/o Babu Singh, mother of plaintiff, respondents No.4 & 5, and mother-in-law of defendant No.1, grandmother of defendants No.2 & 3, was owner in possession of suit property, who died intestate without executing any Will in favour of the deceased – Gurmeet Singh. So, alleged Will dated 06.01.2003 in favour of said Gurmeet Singh by Angrej Kaur is forged and fabricated document. Even otherwise, Angrej Kaur was not competent to execute the Will, as the suit property was only joint Hindu Family property.

Even otherwise, Will is not a genuine Will, because, one of the attesting witness i.e. Gurcharan Dass, is mentioned as r/o Village Beedowali, but actually, he is not residing there, because, he has been working as Veterinary Pharmacist at Village Singhewala Fatuhiwala. There is another reason to doubt the said Will, because, at one point of time Gurmeet Singh, husband and father of defendants No.1 to 3, had filed a suit for declaration, challenging the ownership of Angrej Kaur (his mother), and said suit is still pending in the Civil Court at Gidderbaha. However, in connivance with the revenue officials, defendants succeeded in getting the mutation entered, and then sanctioned on the basis of the alleged ‘Will’.

4. After issuance of notice in the suit, defendants No.1, 4 & 5 did not appear despite service through publication, and thus, they were proceeded against ex-parte vide order dated 18.02.2009, by the learned Trial Court. Later on, defendants No.1 to 3 appeared and filed written statement, in which, apart from taking the formal objection, defendants pleaded that Angrej Kaur was the absolute owner, and property was neither the ancestral nor Joint Hindu Formal property. Defendants No.1 to 3 relied upon the registered Will dated 06.01.2003 executed by Angrej Kaur in favour of Gurmeet Singh, who died on 12.05.2005, leaving behind his natural heirs i.e. defendants No.1 to 3. Thus, defendants claimed that after the death of Angrej Kaur, Gurmeet Singh became owner in posses